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01/30/2013

The Press Democrat: Federal judge to rule on oyster farm’s bid to stay open

Federal judge to rule on oyster farm’s bid to stay open

 

By GUY KOVNER
Published: Friday, January 25, 2013

OAKLAND — A federal judge Friday heard arguments but delayed a decision on a bid by Drakes Bay Oyster Co. to avert a government-ordered shutdown while the company’s legal challenge is resolved.

U.S. District Judge Yvonne Gonzalez Rogers conducted the hearing before a packed courtroom while a crowd of more than 50 people was left standing in front of the federal courthouse in downtown Oakland.

Kevin Lunny, operator of the embattled oyster farm in the 2,500-acre Drakes Estero in Point Reyes National Seashore, is fighting Interior Secretary Ken Salazar’s decision Nov. 29 denying renewal of the operation’s federal permit.

The judge did not indicate when she would rule on the request for an injunction but seemed to cast doubt on the oyster company’s case when she questioned whether the court has jurisdiction in the matter.

“Now, it’s waiting time,” Lunny said in the federal building courtyard after the hearing.

Drakes Bay Oyster Co. plants and harvests 8 million oysters — worth about $1.5 million a year — from the estero, a five-fingered estuary in the national seashore in Marin County.

The judge did not say when she would issue a decision, said Lunny and his attorney, Amber Abbasi, of the Washington, D.C.-based nonprofit group Cause of Action.

Lunny, who was born and raised on a ranch next to the estero, said he was “absolutely hopeful” of a favorable decision. “This is a matter of law. Our attorneys did a beautiful job.”

Sen. Dianne Feinstein’s legislation in 2009 gave Salazar sole discretion to renew the oyster farm’s permit, issued 40 years ago to a previous owner of the oyster farm, which Lunny acquired in 2004.

Four days after Salazar’s decision, Lunny filed the lawsuit alleging it violated federal environmental rules and was based on faulty science.

But without a stay of the Feb. 28 deadline to shut down, Lunny said his enterprise, which employs 31 full-time workers, will be lost.

If he is forced to lay off the staff, remove their housing and kill 19 million oysters in the estero, “there’s no recovering this business,” he said.

Lunny said he is already scaling back the operation, harvesting oysters but no longer planting oyster larvae in the estero’s clear, cold water.

“It’s hard to look at what could happen here,” Lunny said. “It could devastate a small community.”

The prolonged battle over Drakes Bay Oyster Co. pits supporters of West Marin County agriculture, who fear that Salazar’s decision foretells the loss of permits for onshore ranches in the national seashore, versus wilderness advocates who insist that all human activity must be removed from the estero based on its congressional designation as a wilderness area.

Abbasi said she thought the judge “seemed very interested in the irreparable harm,” referring to Lunny’s claim that an ultimate victory in court would do no good if he has to shut down in a matter of weeks.

Abbasi said Judge Rogers’ decision on Lunny’s request to stay in business could be appealed.

Lawyers for Salazar said in court papers that his decision was not subject to environmental rules and that the “allegations of scientific misconduct are baseless.”

Salazar’s decision was “based on the incompatibility of commercial activities in wilderness and not on … data that was asserted to be flawed.”

Lunny’s loss of business was “a foreseeable consequence” of buying the oyster farm in 2004.

Lunny noted Friday that oysters have been harvested from Drakes Estero since 1934.

 

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01/30/2013

The Recorder: Passions Run High in Bivalve Battle

Read the full story here. The Recorder

“Leading the legal fistfight is Cause of Action, a libertarian advocacy group with ties to Tea Party politics. The Washington, D.C., group represents the oyster company pro bono and has also been leading an aggressive public relations campaign.

A preliminary hurdle for the lawyers will be persuading Gonzalez Rogers she can take up the case under the Administrative Procedure Act, which provides an avenue for judicial review of some executive decisions. Also at issue is a provision of the Interior Department’s 2010 appropriations bill, authorizing a new 10-year permit to be issued to Drakes Bay Oyster Co. “notwithstanding any other provision of law.”

The government claims in court filings that since Interior Secretary Kenneth Salazar took no action and simply allowed an existing lease to expire, the decision is unreviewable. For the same reason, Justice Department lawyers argue the Interior Department was exempt from compliance with the National Environmental Policy Act, or NEPA.

Amber Abbasi, the company’s lead lawyer at Cause of Action, calls those assertions “ridiculous.” Salazar took action when he denied the oyster farm’s application for a new permit, Abbasi said. What’s more, Abbasi adds, the Interior Department and National Park Service did not follow mandated standards under NEPA, which requires an environmental impact study and public comment prior to federal action.

“Congress doesn’t want the federal agencies to be able to get away with something like this,” Abbasi said. What her group wants is to preserve the status quo so the oyster farm can survive to fight its case in court. If Lunny doesn’t win his injunction, the farm is done, Abbasi said. “That’s the kind of injury that can’t possibly be compensated…”

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01/30/2013

Washington Free Beacon: Hoping for Relief – Embattled oyster company heads to court hoping for stay on government’s decision to kill it

Read the full story here. The Washington Free Beacon

The Drakes Bay Oyster Company produces about 40 percent of California’s oysters, said Amber Abbasi, chief counsel of Regulatory Affairs for Cause of Action.

Cause of Action, a government watchdog group, is representing Drakes Bay Oyster Company in the lawsuit. Abbasi also noted that the company is the last oyster cannery left in California, which means that the employees who lose their jobs would have difficulty finding employment due to their specialized skill set. The company has provided housing for many employees who would lose not only their jobs but also their homes if the government succeeds in shutting down the business.

“If the judge doesn’t grant this injunction, the business will be lost,” regardless of the outcome, said Abbasi….

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01/23/2013

Dispelling the Myths about the Drakes Bay Oyster Company conflict

The decision last November by Interior Secretary Ken Salazar not to renew The Drakes Bay Oyster Company’s lease was based on a number of inaccurate and misleading claims. Here are five myths that the Secretary, his supporters, and the National Park Service use to justify the oyster farm’s eviction from Drakes Estero:

 

Myth #1:

The Secretary’s decision was based on sound science.

National Park Service researchers claimed that oyster farming operations in Drakes Estero damaged eelgrass beds and upset seal breeding patterns.  Yet other NPS reports contradicted these claims, and the National Academy of Sciences stated that the Park Service had “exaggerated the negative and overlooked the potentially beneficial aspects of the oyster culture operation.” Marine biologist Corey Goodman, who independently studied the farm’s impact on the region’s ecology, called the Park Service research “a stunning misuse of science by our federal government.”  Secretary Salazar ultimately decided that the Park Service’s inaccurate Environmental Impact Study was “not material” to his final decision, ignoring federal law that requires such a study be taken into account.

Myth #2:

Renewing the lease would set a precedent.

Some people were concerned that allowing the oyster company to remain in Drakes Estero would create a model of privatization that other leaseholders in national parks could follow.  However, the 2009 law granting Salazar the right to extend the lease another ten years expressly states that the provision would not be viewed as precedent.  In fact, Salazar’s removal of the oyster company is likely to set a standard in the opposite direction, with more working farms and orchards expelled from national park lands.

Myth #3:

Removing the oyster farm would improve the region’s environmental health.

When owner Kevin Lunny first bought The Drakes Bay Oyster Company in 2004, he took out a $300,000 loan to clean and restore the farm.  Because his family’s livelihood depended on the productivity of Drakes Estero, he was careful to keep the waters clean and productive by clearing the bay of debris and trash left by hikers and kayakers.  The oysters themselves actually improved the bay’s water quality by filtering out algae that inhibits eelgrass growth.

Myth #4:

The disagreement is between environmentalists and the agriculture industry.

As a committed environmentalist, Kevin Lunny turned The Drakes Bay Oyster Company into a model of sustainable agriculture.  “It’s extremely healthy for the environment,” Mr. Lunny said. “There are no feeds, no fertilizers, no chemicals.”  Biologist Corey Goodman called Mr. Lunny “one of the pioneers for organic and sustainable agriculture that also protects the environment.” Advocates for the consumption of locally-produced food to reduce its environmental footprint have long supported the oyster farm, which sells nearly all its product to tourists and local restaurants. With Drakes Bay accounting for 40 percent of the state’s oyster production, California restaurants will have to fly oysters in from the Pacific Northwest or East Coast, increasing greenhouse gases and other harmful emissions.

Myth #5:

The Drakes Bay fight is only about politics: It’s Democrats versus Republicans

Some contend that the fight over Drakes Bay is politically split along ideological fault lines. This too is untrue. First, there has been an outpouring of support from a community where most bi-partisan races were easily won in 75/25 percent split (Democrats/Republicans). Further, Democratic Senator Dianne Feinstein has been a staunch defender of Drakes Bay Oyster Company, as well as a fierce critic of the National Park Service and Department of the Interior. In addition to crafting legislation, Feinstein has been outspoken in her support, even writing a letter to Secretary Salazar last March that called on him to renew the lease. With demonstrated partisan support, this issue isn’t split along party lines.

 

As of May 24, 2013, Cause of Action no longer represents Drakes Bay Oyster Company, the Lunny family, or Dr. Corey Goodman and will be withdrawing as counsel from the litigation.

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01/16/2013

Media Advisory: Court Hearing to Determine the Future of Drakes Bay Oyster Company Scheduled for Jan 25

***MEDIA ADVISORY***

 

COURT HEARING TO DETERMINE THE FUTURE OF

DRAKES BAY OYSTER COMPANY

WHAT:  A hearing in the U.S. District Court of the Northern District of California to determine whether to grant a Preliminary Injunction and allow Drakes Bay Oyster Company to continue operations on their family farm.

After receiving news on November 29, 2012 from Secretary of the Interior Ken Salazar that their family-run oyster farm could no longer remain on National Park Service land, the Lunny family enlisted the help of Cause of Action, as well as Stoel Rives, LLP, SSL Law Firm, LLP, and Briscoe Ivester & Bazel, LLP, to help fight for their farm, family, and their community against the government’s abuse of authority.

 

On December 18, Cause of Action filed a Motion for Preliminary Injunction, which if granted, will allow Drakes Bay Oyster Company to remain in business until the merits of the National Park Service and Secretary of the Interior Ken Salazar decision to shut down the farm have been decided by the Court.

 

 

WHO:   Kevin Lunny, owner, Drakes Bay Oyster Company

Amber Abbasi, Chief Counsel for Regulatory Affairs at Cause of Action

Ryan Waterman, of Counsel at Stoel Rives, LLP
Peter Prows, Partner at Briscoe Ivester & Bazel, LLP

Cause of Action is a nonprofit, nonpartisan organization that uses investigative, legal, and communications tools to educate the public on how government accountability and transparency protects taxpayer interests and economic opportunity.

 

 

WHEN: Friday, January 25, 2013 at 2:00pm Pacific Time

 

WHERE: Oakland Courthouse, Courtroom 5 – 2nd Floor

1301 Clay Street, Oakland, CA 94612

 

RSVP: This hearing is open to the media and the public. Cameras will not be allowed inside the courtroom.

 

To speak with Kevin Lunny, owner of Drakes Bay Oyster Company or Amber Abbasi, Chief Counsel for Regulatory Affairs at Cause of Action, contact Mary Beth Hutchins,  202-400-2721 or Jamie Morris, jamie.morris@causeofaction.org, at

202-499-4232

 

 

 

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12/18/2012

Drakes Bay Oyster Company Pushes Back, 90 Day Deadline Extended

FOR IMMEDIATE RELEASE                                                                                    CONTACT:

DECEMBER 18, 2012                                                   Mary Beth Hutchins or Jamie Morris

202-499-4232

Movement in Drakes Bay Oyster Company’s Push against the Government: 90 Day Deadline Is Extended

SAN FRANCISCO – The first signs of progress have come for Drakes Bay Oyster Company (DBOC) and the Lunny family in their fight against the National Park Service and Department of Interior following Sec. Kenneth Salazar’s November 29 decision that essentially shut down their business.

 

In a stipulation approved by order of the court, the Department of Justice, which is defending the government in Drakes Bay Oyster Company, et al. v. Kenneth L. Salazar, et al., conceded to requests by the DBOC attorneys as follows:

 

  1. DBOC may conduct activities involving planting and growing new oysters in the water at Drakes Estero, and will thereby avoid threatened layoffs of one-third of its employees right before the holidays.
  2. DBOC will no longer be required to remove the mobile residential units located on site and currently inhabited by Drakes Bay Oyster Company employees, thereby providing more time for those employees to look for affordable housing.
  3. DBOC now has until March 15, 2013 to complete the removal of all other personal property within the onshore area, instead of the original February 28, 2013 deadline.
  4. A hearing is set for January 25, 2013 on a request for a preliminary injunction.

 

Under the agreement, DBOC withdraws its request for a temporary restraining order that was submitted to the court last week, and instead will file a Motion for a Preliminary Injunction.

 

“While this decision brings some temporary relief for the Lunnys and their employees, the attorneys representing the best interests of DBOC know that this is only the first step in fighting against the abuse perpetrated by Secretary Salazar – at the expense of a small, family-owned and environmentally sound business,” said Dan Epstein, executive director of Cause of Action.

 

Cause of Action, Stoel Rives, Briscoe Ivester & Bazel, and SSL Law represent Drakes Bay Oyster Company.

 

To schedule an interview with Dan Epstein, Cause of Action’s Executive Director, contact Mary Beth Hutchins,  202-400-2721 or Jamie Morris, jamie.morris@causeofaction.org, at 202-499-4232.

 

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12/14/2012

Kevin Lunny on Fox & Friends


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